Facts
On August 17, 1953, an accident occurred on a construction site in Zurich involving a tower crane. The crane operator, Fritz Weibel, employed by the contractor J. Piller, struck the temporary safety rail of the crane, which resulted in the crane overturning and the collapse of a portion of the roof and scaffolding of the building under construction, endangering workers, students, and passersby. Alois Kym, Piller's foreman, and Otto Schwaller, the installer from the company that owned the crane, were prosecuted for endangerment by violation of construction regulations (Art. 229(2) SCC) and for removal or non-installation of safety devices (Art. 230 SCC). The District Court of Zurich convicted them both of endangerment by violation of construction regulations. On appeal, the Cantonal Court acquitted Weibel but convicted Kym and Schwaller of the same offence, sentencing them to a fine of 80 francs each.Considerations
The Federal Supreme Court dismisses Schwaller's appeal. It considers that Arts. 229 and 230 SCC apply independently of the provisions of the regulations on the prevention of accidents related to the use of cranes (Art. 38 of the Ordinance of June 22, 1951 and Art. 66 LAMA), as the latter aim to protect the interests of compulsory accident insurance, while Arts. 229 and 230 SCC protect the life and physical integrity of persons as such.
Although crane operator Weibel had reported the lack of safety, the Court considers that Schwaller, as the person responsible for the installation and dismantling of cranes, had the obligation to ensure that the safety devices were in place, even if he had not directly proceeded to reduce the length of the rail. The fact that he used…